A federal district court this week, in U.S. v. Liu et. al, upheld the conviction of three defendants two of whom were attorneys for immigration fraud despite the fact that two different jurors sent out trial-related tweets. The first juror was dismissed prior to deliberations so that juror was less of an issue. The second juror was not removed and thus serves as the basis for the defendant's motion for a new trial. In dismissing the defendant's motion the trial judge determined that
When the embrace of social media is ubiquitous, it cannot be surprising that examples of jurors using platforms like Facebook and Twitter "are legion." United States v. Fumo. And because of the risks inherent in such ac- tivity, "vigilance on the part of trial judges is warranted." Ganias, 755 F.3d at 132. On this record, however, Defendants' claim must fail. Juror2 was an attentive juror who,while engaging in banter with fellow Twitter users about her experience, was nonetheless careful never to discuss the sub- stance of the case, as instructed by the Court. The record is devoid of any evidence that she was either dishonest or biased, or that Defendants were prejudiced by her tweets in any way.
I think the trial judge got it right here. In the Digital Age, it is naive to believe that jurors are going to forego social media throughout the trial; it has become too omnipresent. The key is to see if the juror starts to discuss or get into the merits of the case.
Professor Volokh has an interesting post on the Washington Post about using Powerpoint during trial. In the case (State v. Rivera) referenced in Prof. Volokh's post, the prosecutor went over the top with his use of Powerpoint.
I am a big believer in Powerpoint. I have used it both in the courtroom and the classroom. I find it very helpful in maintaining the attention of both students and jurors. I think individuals, especially Digital Natives, are more receptive to visual information that comes to them in an electronic format. I wouldn't do a whole trial by Powerpoint. However, I think it can be quite effective in the Opening and Closing when you are trying to tell a complete story or sum up the facts.
A Florida trial judge has prohibited a criminal defense attorney from talking to a juror about his guilty verdict. The defense attorney believes that the juror in question might have applied the wrong legal standard in coming up with his verdict. The defense attorney made this determination based on interviews the juror gave to the media after the trial.
In denying the defense attorney's request the judge wrote that
the court finds that the media comments attributed to one juror in Orr relate to matters which inhere in the verdict and are not properly the subject of a juror interview.
Starting August 1st, individuals who file retaliation or discrimination claims pursuant to the Minnesota Human Rights Act (MHRA) can now request a jury trial. The MHRA prohibits discrimination in employment, housing, public accommodations, public services, and education. The right to a jury trial belongs to the plaintiff or the "person bringing a civil action" rather than the defendant who is alleged to have violated the MHRA. For a brief analysis of this change go here.
This week the Federal Judiciary Center issued a report on (1) juror use of social media to communicate during trials and deliberations; and (2) attorney use of social media to conduct research on potential jurors during voir dire. This 2014 report is a follow-up on a similar report in 2011. To read my prior criticism of the 2011 report go here.
While this 2014 report does have some positive attributes, it still suffers from the same fatal flaw as the 2011 report. For example, like with the 2011 report, the 2014 report surveys federal judges to determine whether or not jurors improperly use social media. Judges are not necessarily in the best position to make this determination. Thus, when the report says that "social media use by jurors is infrequent" one has to question the accuracy of that statement. Why not ask the jurors themselves or the numerous consulting companies that are now advertising set prices to monitor the social media use of jurors see e.g., jury scout?
Another downside of this report is the revelation that some federal judges (120 out of 466) do not allow attorneys to research jurors online. I, along with others, think that these 120 judges are wrong. Why should attorneys be prevented from doing the same thing that employers, landlords, or first dates now do on a regular basis? In the Digital Age, it has become quite common to Google people before and after you meet them. I have previously written about the benefits of researching jurors online here.
On the positive side, this report contains a large number of sample internet-related jury instructions, which also brings me to my last point. Although this report is sorely lacking in many areas, it should be acknowledged that at least the Federal Judicial Center is attempting to bring attention to the impact of social media on jurors and jury selection. By publishing reports like this and sharing information such as jury instructions, judges can better understand how to prevent jurors from conducting independent research or making improper online communications.
The Tampa Tribune has an interesting article highlighting the efforts by some defense attorneys to make their clients more presentable to jurors. As the article points out, attractive defendants are less likely to be convicted than unattractive defendants. In certain instances, defense attorneys go beyond just putting a suit or some nice clothes on the defendant. For example, some defendants are instructed to put on glasses or use make-up to cover inflammatory tattoos.
This may be the question that some Cuyahoga residents are starting to ask as result of the latest effort to make jury duty in Cuyahoga County a little more pleasant. According to a recent article in the Cleveland Plain Dealer, court administrators have teamed up with the Cleveland Animal Protection League to allow jurors to interact with adoptable dogs during the lunch hour. Cuyahoga County Common Pleas Judge Kathleen Ann Sutula, who chairs the court's Jury Committee, states that bringing in adoptable dogs is an attempt by the courts to provide a better experience to jurors and to take advantage of a captive audience.